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Discriminating against employees with HIV or AIDS is now a criminal offense in Brazil, effective since June 2014, and punishable by up to four years in prison.
The new law prohibits discriminatory practices in hiring and firing because of a person’s HIV/AIDS status, segregating employees based on HIV/AIDS status, or disclosing the medical condition of those with HIV or AIDS, with the intention of offense.
Multinational companies operating in Brazil should communicate this update to staff and include it in equal employment opportunity (EEO) training. EEO policies should also be reviewed to ensure compliance.
Brazil’s highest labor court in 2012 established the presumption of discrimination where an employee with HIV or some other serious illness that may evoke stigma or prejudice is terminated from employment, said Renata Neeser, a shareholder at Littler, based in New York City. “The Court enunciated that such termination is deemed invalid, entitling the employee to reinstatement,” she said.
Neeser noted that although only employees in managerial positions and company representatives can face criminal charges, corporate employers may be liable for moral damages, a type of punitive damage to cover unquantifiable damages and discourage similar behavior. “Moral damages can be sought by individuals, in which case the awards typically remain within five-digit figures, or by the Labor Public Office on behalf of a group of employees, in which case the awards can reach millions of dollars,” she said.
In addition to HIV/AIDS status, the list of protected categories under employment discrimination—whether found in Brazil’s Federal Constitution or the Labor Code—includes sex, age, race, color, ethnicity, religion, national origin, marital status and family status.
It is also a crime for employers to require employees to submit to pregnancy tests or present negative certificates of pregnancy, induce employees to sterilization, or promote birth control not in accordance with federal health system rules, Neeser said.
Roy Maurer is an online editor/manager for SHRM.
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